Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices 37613

changing in ways that will allow

airports to have greater control over how

they allocate gates? (6) Have airport

projects funded through Passenger

Facility Charges been successful in

promoting competition? Why or why

not? (7) What actions have airports

taken to promote entry? (8) How do

Majority-in-Interest Agreements affect

the competitive environment at

airports? (9) Is there a trend away from

long-term, exclusive-use gate leases?

(10) Have airports reallocated gates

away from incumbent carriers

(‘‘recapture’’ provisions) in ways that

promote entry? (11) Do airports involve

themselves in monitoring subleasing/

use agreements among air carriers? (12)

Do airports attempt to ensure that prices

charged for subleased facilities or

ancillary services are reasonable? (13) Is

there any evidence that established air

carriers are transferring access to airport

facilities among themselves in ways that

affect competition? (14) Are there

reasons to retain current airport

practices even if they adversely affect

competition?

Issued in Washington, D.C., July 8, 1998.

Rosalind A Knapp,

Deputy General Counsel, Department of

Transportation.

Susan L. Kurland,

Assistant Administrator for Airports, Federal

Aviation Administration.

[FR Doc. 98–18615 Filed 7–10–98; 8:45 am]

BILLING CODE 4910–62–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

[USCG–1998–4022]

In the Matter of Union Pacific (Formerly

Known as Southern Pacific

Transportation Company)

AGENCY: United States Coast Guard,

DOT.

ACTION: Notice of proposed penalty;

opportunity to comment.

SUMMARY: The United States Coast

Guard gives notice of and provides an

opportunity to comment on the

proposed assessment of a Class II

administrative penalty to Union Pacific,

formerly known as Southern Pacific

Transportation Company, for violations

of the Federal Water Pollution Control

Act (FWPCA). The alleged violations

involved the discharge of approximately

1012 barrels of oil into the waters of

Buffalo Bayou, Houston, Texas and

adjoining shorelines from September 25,

1995 to September 29, 1996. Interested

persons may participate or file

comments in this proceeding.

DATES: Filings in this matter must be

received not later than August 12, 1998.

ADDRESSES: Interested persons must

submit all filings in this matter to the

Hearing Docket Clerk. Filings should

reference ALG Docket number 98–0001–

CIV.

If you file by mail, the address is

Hearing Docket Clerk, Administrative

Law Judge Docketing Center, United

States Coast Guard, 40 South Gay Street,

Room 412, Baltimore, Maryland 21202–

4022.

If you file by fax, then send to (410)

962–1762.

If you file in person, then deliver the

filings to the same address at room 412

between 8 a.m. and 3 p.m., Monday

through Friday, except Federal holidays.

The public may inspect the

administrative record for this Class II

civil penalty proceeding at the same

address and times.

FOR FURTHER INFORMATION CONTACT: Mr.

George J. Jordan, Director of Judicial

Administration, Office of the Chief

Administrative Law Judge,

Commandant (G–CJ), U.S. Coast Guard,

2100 Second Street SW., Washington,

DC 20593–0001, Telephone (202) 267–

2940.

SUPPLEMENTARY INFORMATION: This

proceeding is a Class II civil penalty

proceeding brought under section 311(b)

of the Federal Water Pollution Control

Act (33 U.S.C. 1251 et seq.), as amended

by the Oil Pollution Act of 1990 (33

U.S.C. 1321(b)). The FWPCA requires

that the Coast Guard publish notice of

the proposed issuance of an order

assessing a Class II civil penalty in the

Federal Register.

If you wish to be an interested person,

you must file written comments on the

proceeding or written notice of intent to

present evidence at any hearing held in

this Class II civil penalty proceeding

with the Hearing Docket Clerk. You

must file not later than August 12, 1998.

The following table explains how

interested persons may participate in a

Class II civil penalty proceeding.

If Then

A hearing is

scheduled.

You will be given

• Notice of any hearing.

• A reasonable opportunity

to be heard and to present

evidence during any hearing.

• Notice and a copy of the

decision. 33 CFR 20.404.

If Then

The proceeding is concluded without a hearing.You may petition the Commandant of the Coast

Guard to set aside the

order and to provide a

hearing.

You must file the petition

within 30 days after

issuance of the administrative law judge’s order. 33

CFR 20.1102.

You can find the regulations

concerning Class II civil penalty

proceedings in 33 CFR Part 20.

This proceeding (ALJ Docket Number:

98–0001–CIV) results from an alleged

discharge of approximately 1012 barrels

of oil into Buffalo Bayou, Houston,

Texas and adjoining shorelines

beginning on or about September 25,

1995, and continuing through and

including September 29, 1995. The

Coast Guard filed the Complaint on June

1, 1998, at New Orleans, LA.

The Respondent is Union Pacific

(formerly known as Southern Pacific

Transportation Company), 808 Travis,

Suite 620, Houston, Texas 77001.

The Coast Guard seeks a civil penalty

of $50,000.

Dated: July 7, 1998.

George J. Jordan,

Director of Judicial Administration, Office of

the Chief Administrative Law Judge, United

States Coast Guard.

[FR Doc. 98–18555 Filed 7–10–98; 8:45 am]

BILLING CODE 4910–15–M

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA–97–2287; MC–96–40]

Motor Carrier Regulatory Relief and

Safety Demonstration Project;

Modifications

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice; request for comments.

SUMMARY: The FHWA is extending the

application period for the Motor Carrier

Regulatory Relief and Safety

Demonstration Project (Project),

published in the Federal Register on

June 10, 1997. The agency is also

seeking public comment upon proposed

modifications to the entry criteria and

reporting requirements of the Project. In

the June 1997 notice, the FHWA

indicated that it would later publish

additional information clarifying the

eligibility criteria and application

process. This notice is that clarifying

document and proposes to provide

additional incentives to participating
37614 Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices

motor carriers without adversely

impacting highway safety. Motor

carriers operating commercial motor

vehicles (CMVs) with a gross vehicle

weight rating (GVWR) between 10,001

and 26,000 pounds, in interstate

commerce, may qualify for exemptions

from certain portions of the Federal

Motor Carrier Safety Regulations

(FMCSRs) if they exhibit exemplary

safety records. Motor carriers

participating in this Project would have

the opportunity to demonstrate they can

maintain or improve their safety records

when they are given greater latitude to

select the means by which their safety

performance is attained. The FHWA

seeks the comments of all interested

parties regarding these Project

modifications, especially comments

aimed at aiding the FHWA in providing

substantive industry incentives while

maintaining the highest degree of safety.

Upon review of public comment, the

FHWA intends to modify the project,

authorize qualified motor carrier

participation, and publish a

supplemental notice of final

determination.

DATES: Comments must be received no

later than August 12, 1998. Written

comments addressing the information

collection requirements of this Project

must be received on or before

September 11, 1998. Applications for

participation in the Project must be

submitted no later January 30, 1999.

ADDRESSES: Signed, written comments

must refer to the docket number

appearing at the top of this document

and must be submitted to the Docket

Clerk, Docket No. FHWA–97–2287; MC–

96–40, U.S. DOT Dockets, Room PL–

401, 400 Seventh Street, SW.,

Washington, D.C. 20590–0001. All

comments received will be available for

examination at the above address from

10 a.m. to 5 p.m., e.t., Monday through

Friday, except Federal holidays. Those

desiring notification of receipt of

comments must include a self-addressed

stamped envelope or postcard.

For Internet users, all comments

received will be available for

examination at the universal resource

locator—http://dms.dot.gov—24 hours

each day, 365 days each year. Please

follow the instructions on-line for more

information and help.

FOR FURTHER INFORMATION CONTACT: Mr.

Robert W. Miller, Office of Motor

Carriers, (202) 523–0178, or Mr. Charles

Medalen, Office of the Chief Counsel,

(202) 366–1354, Federal Highway

Administration, DOT, 400 Seventh

Street, SW., Washington, D.C. 20590.

Office hours are from 7:45 a.m. to 4:15

p.m., e.t., Monday through Friday,

except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Availability

An electronic copy of this document

may be downloaded using a computer,

modem, and suitable communications

software from the Government Printing

Office (GPO) electronic bulletin board

service (telephone: 202–512–1661).

Internet users may reach the GPO’s web

page at: http://www.access.gpo.gov/

suldocs/aces/aaces002.html.

Background

On November 28, 1995, the President

signed the National Highway System

Designation Act of 1995 (NHS Act) (Pub.

L. 104–59, 109 Stat. 568 (1995)). Section

344 of the NHS Act requires the FHWA

to implement a pilot program under

which motor carriers operating CMVs

with a GVWR between 10,001 and

26,000 pounds, in interstate commerce,

could qualify for exemptions from the

FMCSRs (49 CFR Part 325 et seq.). In

accordance with the NHS Act, the

FHWA developed the Project and

published a detailed description of the

Project in the Federal Register on June

10, 1997. There has been limited

industry interest to participate in the

Project since the publication date.

Through a series of outreach sessions,

the FHWA discovered the absence of

extensive industry interest is due, in

part, to a lack of understanding of how

the Project would work and questions

about potential incentives for program

participation. The purpose of this notice

is to provide the public with an

opportunity to assist the FHWA in

determining whether clear and

sufficient incentives have been

included, while maintaining the highest

degree of safety. Modifications have

been made to the current details of the

Project and additional exemptions are

proposed. The FHWA is seeking all

points of view before implementing

these newly proposed parameters as

part of the Project. The FHWA will

peruse all suggestions and weigh

carefully the facts upon which they are

based.

The FHWA proposes that in order to

participate in the Project, a motor carrier

would have to meet the criteria for

admission developed by the Secretary

and outlined later in this notice. The

criteria for admission has been modified

regarding the definition of ‘‘accident’’

and the Project entry accident rate

threshold. Motor carriers seeking to

participate are still required to develop

a written Safety Control Plan for the

Project. This plan should outline the

measures which the motor carrier would

undertake to ensure its current level of

safety is not compromised while

operating under the proposed

exemptions. The motor carrier would

also enter into a written agreement of

participation with the FHWA in which

it would agree to abide by its Safety

Control Plan and to work with the

FHWA in generating and monitoring

certain Project data. The FHWA would

grant, for the term of the Project only,

an exemption to participating motor

carriers from certain current

requirements of the FMCSRs, but such

exemption would apply only to the

eligible CMVs and drivers designated by

the motor carrier in its application. The

FHWA will evaluate the Project data

throughout the Project, with particular

focus upon the significance of the data

with regard to FHWA’s regulatory

reinvention and zero-base initiatives.

The FHWA would, in accordance with

the NHS Act, use this data to conduct

a zero-base review of the need for, and

the costs and benefits of, all the

FMCSRs.

The requirements for participation in

the Project include several information

collection requirements which must be

approved by the Office of Management

and Budget (OMB) under the Paperwork

Reduction Act (PRA) of 1995 (44 U.S.C.

3501–3520). On November 6, 1997, the

OMB reinstated the authorization for the

FHWA’s submission of these

information collection requirements as

provided under OMB No. 2125–0575,

with an expiration date of November 30,

2000.

Analysis of Project data will occur

throughout the Project, and only at such

time as that analysis is complete will

the FHWA be in a position to consider

other performance-based initiatives.

Given the Project parameters, the FHWA

believes that three years of continuous

and sustained motor carrier operations

is the minimum amount of time

necessary to draw conclusions about

operational safety. In view of the

customary level of activity for a motor

carrier, the FHWA, after three years,

should be able to assert, with reasonable

certainty, that the data accumulated

with respect to the activity of the class

of motor carriers in this Project is

representative of future behavior.

Table of Contents

I. Introduction

II. Current Project Exemptions

III. Proposed Additional Project Exemptions

IV. Criteria For Admission to the Project

V. Applying for participation in the Project

VI. Safety Control Plans

VII. Eligible Drivers

VIII. The Agreement of Participation

IX. Removal from the Project

X. The Final Evaluation
Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices 37615

XI. Preemption

XII. Paperwork Reduction Act of 1995

XIII. Conclusion

I. Introduction

Many commenters to the original June

10, 1997 proposal contended the design

of the Project would discourage motor

carrier participation. The explanation

most frequently offered for this belief

was that the paperwork requirements of

the Project, both at the time of

application and during the Project, were

too burdensome and outweighed the

regulatory relief participating motor

carriers would receive. The commenters

strenuously objected to the proposed

paperwork requirements, while noting

that substantive exemptions weren’t

offered. For instance, it was suggested

that most motor carriers would continue

to require a pre-employment road test

for new hires even if they were exempt

from that requirement. For these reasons

and given the current level of industry

interest, clarifying and amending the

Project requirements, as well as

providing additional incentives, seem to

be in order. We believe these

modifications will reduce participants’

burden and improve industry interest.

II. Current Project Exemptions

In accordance with the NHS Act,

qualified interstate motor carriers would

be exempt from certain regulatory

requirements while participating in the

Project. In the June 10, 1997 Federal

Register notice, the regulations

described below were those from which

participating motor carriers would be

exempt. Those Project exemptions

would continue to be offered. No

current exemptions would be removed.

Clarifications and modifications of these

exemptions are explained in this

section. Motor carriers participating in

the Project are only exempt from the

regulations specified in the Project. A

participating motor carrier may elect to

voluntarily comply with any of the

requirements described below as part of

its normal business practices. For the

purposes of the Project, however, the

motor carriers would be exempt from

those requirements. Project motor

carriers, and their eligible drivers,

would, with regard to the interstate

operation of CMVs with a GVWR

between 10,001 and 26,000 pounds, be

exempt from the following requirements

of the FMCSRs:

Driver Qualifications

Drivers would not be required to

prepare, or furnish to the employing

motor carrier, an annual list of

violations of motor vehicle laws, or a

certificate in lieu thereof, in accordance

with 49 CFR 391.11(b)(8) and 391.27.

Motor carriers, however, would be

required to obtain a State driving record

as required by 49 CFR 391.23. Further,

drivers would not be required to

successfully complete a Driver’s Road

Test, or furnish an employing motor

carrier an Application For Employment,

in accordance with 49 CFR

391.11(b)(10) and 391.31 and 49 CFR

391.11(b)(11) and 391.21. In addition,

motor carriers would not have to

maintain ‘‘complete’’ Driver

Qualification Files on each driver in

accordance with 49 CFR 391.51. The

documents identified above would not

be required to be in the qualification

file. Only those documents from which

participating motor carriers are not

exempt would be required to be in the

driver qualification file.

Driver Hours-of-Service

Project drivers would not be required

to comply with record of duty status

regulations, whether this entails

maintenance of a record of duty status

(logbook) in accordance with 49 CFR

395.8, use of a time card in accordance

with 49 CFR 395.1(e), or the use of an

interactive automatic on-board

recording device in accordance with 49

CFR 395.15. Project motor carriers and

drivers, however, must observe the

provisions governing maximum driving

time, and the use of ill or fatigued

operators in accordance with 49 CFR

395.3 and 392.3. Additionally, Project

motor carriers and their drivers would

not forfeit any other exemptions

available under the FMCSRs.

CMV Inspections

While participating in the Project,

motor carriers would be exempt from

those requirements pertaining to CMV

inspection records and their retention,

in accordance with 49 CFR 396.3 (b) and

(c). Exemption would also be granted

from the regulations pertaining to the

preparation of driver vehicle inspection

reports and the driver vehicle

inspection requirements ( 49 CFR

396.11 and 396.13 (b) and (c)). In

addition, driveaway-towaway

inspections would not be required of

Project motor carriers or their drivers

(49 CFR 396.15). Periodic inspections

and the preparation of periodic

inspection reports ( 49 CFR 396.17 and

396.21) would also fall under the

exemption. However, motor carriers

would not be relieved of their

responsibility to inspect, repair and

maintain their motor vehicles in

accordance with 49 CFR 396.3(a).

Furthermore, Project drivers and CMVs

would be subject to roadside safety

inspections.

Accident Information

Project motor carriers would be

exempt from the requirement that they

maintain an accident register in

accordance with 49 CFR 390.15 (b)(1)

and (2).

III. Proposed Additional Project

Exemptions

The FHWA has received

recommendations for additional

incentives to be included in the Project

to increase industry interest. The FHWA

has analyzed those recommendations

and has determined that the following

additional incentives should be offered:

Driver Qualifications

Drivers would not be required to read

or speak the English language in

accordance with 49 CFR 391.11(b)(2),

provided they can effectively

communicate with enforcement

officials. Motor carriers would not be

required to document investigations of

drivers’ employment history in

accordance with 49 CFR 391.23(c).

Motor carriers would also be relieved

from documenting the annual review of

drivers’ records in accordance with 49

CFR 391.25. In addition, relief would be

provided regarding medical

examinations and certifications. The

current requirement for drivers to be

medically re-examined and certified

each 24 months in accordance with 49

CFR 391.45(b)(1) would be removed for

the duration of the Project, provided

participating drivers have a current

medical examination certification prior

to entry into the Project. Newly hired

drivers would be required to be

medically examined once, prior to entry

into the Project, in accordance with 49

CFR 391.45(a). We believe participating

motor carriers will ensure drivers are

physically fit for duty as part of their

normal business practices.

In addition to driver qualification

exemptions, motor carriers would be

relieved from the unauthorized

passenger transportation prohibition of

49 CFR 392.60.

Driver Hours-of-Service

The industry has asked the FHWA to

reconsider providing relief from the

underlying hours-of-service (HOS)

regulations, not just recordkeeping. The

FHWA has evaluated this request and

has determined that some relief might

be provided without reducing highway

safety. Most trucks in this weight range

are used in local transportation

operations. Drivers return to the home

terminal at the end of each work shift

and do not spend overnight periods on

the road. If overnight stays are needed,

drivers generally sleep in motels
37616 Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices

because these CMVs are usually not

equipped with sleeper berths. These are

optimal conditions for obtaining

restorative sleep. The vast majority of

drivers operating this class of CMV are

local drivers operating between 6 a.m.

and 9 p.m. Their on-duty hours are

usually regular in nature. They are

usually afforded ample time to obtain

sufficient recuperative sleep (9–12

hours off-duty in every 24) during the

optimal time for sleep (midnight to 6

a.m.). Due to the nature of their

operations, they are the least affected by

regulatory restrictions. Additionally, the

largest fraction of non-local use is by

private motor carriers of freight,

primarily driver-operators in service

industries. The nature of their work is

such that they generally set their own

schedules and are not influenced by

third-party customers to the degree a

for-hire motor carrier is affected.

The FHWA is, therefore, proposing to

allow participating drivers to be on duty

for 12 consecutive hours with no

mileage limit and no constraints on

their activities. The premise being that

such drivers perform other functions in

addition to driving and will not exceed

the current 10-hour driving limitation.

This action would parallel the

exemption allowed by 49 CFR 395.1 (e).

As stated previously, drivers will be

required to comply with the drivingtime provisions of 49 CFR 395.3(a) and

(b).

CMV Inspections

In the June 10, 1997 Federal Register

notice, the FHWA relieved participating

motor carriers from performing annual

vehicle inspections in accordance with

49 CFR 391.17. Since we are proposing

to exempt participating motor carriers

from the annual inspection, the

participating motor carriers would be

exempt from the annual inspector

qualification requirements set forth in

49 CFR 396.19 while participating in the

Project and inspecting program CMVs.

Participating motor carriers would also

be relieved of the requirements for brake

inspector qualifications and

recordkeeping in accordance with 49

CFR 396.25, except for inspectors

working on air brake systems. The

rationale for this is that most of these

vehicles are equipped with hydraulic

brakes.

The FHWA seeks public comment on

whether these additional exemptions

are appropriate and whether these

additional incentives will increase the

industry’s interest in participating. The

NHS Act requires the FHWA to ensure

the Project is designed to achieve a level

of operational safety ‘‘equal to or greater

than’’ that under the current

requirements of the FMCSRs. In

considering additional exemptions

under this Project, the FHWA carefully

weighed whether adequate safety

measures exist to ensure the exemptions

do not adversely affect highway safety.

IV. Criteria for Admission to the Project

The FHWA believes participation in

this Project should be limited to those

motor carriers that have exemplary

safety records. The agency further

believes that the best measure of an

exemplary record would be an accident

rate equal to, or better than, that of the

top 25 percent of motor carriers. The

FHWA estimates this accident rate to be

0.5, or fewer, accidents per one million

vehicle miles of travel. Accidents are

those incidents resulting in (1) a fatality,

(2) bodily injury to a person who, as a

result of the injury, immediately

receives medical treatment away from

the scene of the accident, or (3) one or

more motor vehicles incurring disabling

damage as a result of the accident,

requiring the motor vehicle to be

transported away from the scene by a

tow truck or other motor vehicle.

This rate is derived from an analysis

of Compliance Review (CR) data,

collected for the years 1993 through

1997. The decision to base this rate on

accidents was made after discussions

with representatives from the motor

carrier industry. This approach is

consistent with the FHWA’s definition

of the term ‘‘accident’’ as it appears in

49 CFR 390.5.

Note that the FHWA does not

maintain any CR or other accident data

specific to motor carriers operating

CMVs within the 10,000 pound to

26,000 pound range. Thus, the agency’s

analysis of the CR data could not be

limited precisely to the population

targeted for this Project. The analysis

was, however, limited to only those

motor carriers operating at least one

straight truck. The FHWA estimates that

between 50 and 75 percent of all straight

trucks are within the 10,000 pound to

26,000 pound range. Further, only those

motor carriers, in the CR data base,

having three or more years of accident

data were considered. The analysis was

further limited to those carriers

averaging at least one million vehicle

miles traveled (VMT) over a three year

period. This was done to (1) be

consistent with the carrier eligibility

requirements established for this

Project, and (2) guard against any bias

resulting from including carriers having

an insufficient number of VMT to

determine an accident rate accurately.

For the 271 motor carriers meeting

these conditions in the analysis file, 25

percent had an accident rate of 0.5 or

fewer accidents per one million VMT,

based on three or more years of data.

Hence, the cut-off for identifying the top

25 percent of carriers based on this

analysis is 0.5.

Using CR data allows us to analyze

accident data at the carrier level. No

other data base available to the agency

allows for such an analysis. Although it

may be argued that by using such data,

the agency is basing its accident rate

cut-off point on a group of motor

carriers already identified as

substandard, only 36 out of 223, or 16

percent of these carriers had a SafeStat

crash safety evaluation area (SEA) score

greater than 75, thereby indicating a

potentially high accident rate (for 48 of

the carriers, the SEA score could not be

obtained or inferred).

Furthermore, overall accident

statistics produced from this file are not

dramatically different from accident

statistics generated from other data

sources. For example, the average

accident rate across all carriers based on

this analysis file (composed of carriers

with straight trucks, having at least

three CRs between 1993 and 1997, and

an average three year VMT of one

million or higher) is 0.75 accidents per

million VMT. If all motor carriers

having had three or more CRs between

1993 and 1997 are considered, with no

constraints on power unit composition

or VMT, the accident rate drops slightly

to 0.72. Using the General Estimates

System (GES) data base for purposes of

comparison, the overall accident rate

between 1993 and 1996 for straight and

combinations trucks is 0.6 accidents per

one million VMT.

The FHWA, therefore, proposes to

modify the Project participation

requirement regarding accident rates by

eliminating the ‘‘police-reportable’’

accident definition and using the

definition of an ‘‘accident’’ in 49 CFR

390.5. Furthermore, the FHWA proposes

an accident rate, for entry into and exit

from the Project, of no more than 0.5

accidents per million VMT, averaged

over the most recent 36 months. Motor

carriers with less than one million VMT

in the most recent 36 months would be

eligible for the Project if they have no

more than one accident during that

period of time. Two or more accidents

would result in a motor carrier being

declared ineligible for this Project. It is

important to note that the accidents and

mileage used in calculating this

accident rate only include vehicles

eligible for the Project and no others.

The FHWA seeks public comment on

these proposed criteria. Is an accident

rate of no more than 0.5 accidents per

1,000,000 VMT a prudent requirement

in view of the need to limit
Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices 37617

participation to those carriers with

exemplary safety records? Are there

other tenable approaches? If yes, what

data or rationale support them?

The criteria for admission to the

Project has otherwise remained the

same as published in the June 10, 1997

Federal Register, except for the change

regarding the definition of an accident

and the accident rate for Project

eligibility described above. No other

criteria modifications are being

proposed for admission to the Project.

Each motor carrier applying for

admission to the Project must satisfy the

following 7 prerequisites:

1. The motor carrier operates in

interstate commerce.

2. The motor carrier operates CMVs

having a GVWR between 10,001 and

26,000 pounds.

Note: CMVs designed to transport more

than 15 passengers (including the driver), or

used to transport hazardous materials in

placardable quantities, as defined in

regulations issued by the Secretary of

Transportation under the Hazardous

Materials Transportation Act (49 U.S.C. 5101

et seq.), are not eligible to participate in this

Project.

3. The motor carrier does not

currently have a Safety Fitness Rating of

‘‘Unsatisfactory’’ issued by the FHWA.

Motor carriers that have not received a

safety rating issued by the FHWA are

eligible for this Project.

4. For CMVs eligible for this Project,

the motor carrier has an accident rate

equal to or less than 0.5 accidents per

million VMT, averaged over the most

recent 36 months. The term ‘‘accident’’

is defined in 49 CFR 390.5. For

example, a motor carrier which has had

2 accidents and has 5 million VMT by

eligible CMVs over the most recent 36

months would be eligible for the Project

based upon the following calculation: 2

divided by 5 equals 0.4, which is less

than 0.5. This calculation is to be based

solely upon the accidents and mileage

of those CMVs which have a GVWR

between 10,001 pounds and 26,000

pounds.

Motor carriers with less than one

million VMT in the most recent 36

months are eligible for the Project if

they have not had more than 1 accident

during that period of time. Two or more

accidents would result in ineligibility

for this Project.

5. The motor carrier is active on a

year-round basis. ‘‘Seasonal’’ motor

carriers are not eligible for the Project.

6. The drivers assigned by the motor

carrier for participation in the Project

have not been convicted, in the past

three years, of:

(a) An offense that directly arose out

of a fatal traffic accident;

(b) Driving a CMV while under the

influence of alcohol, including;

(i) Driving a CMV while the person’s

alcohol concentration is 0.04 percent or

more;

(ii) Driving under the influence of

alcohol, as prescribed by State law; and

(iii) Refusal to undergo testing for

alcohol or controlled substances as

required by any State or jurisdiction;

(c) Driving a CMV while under the

influence of a controlled substance;

(d) Leaving the scene of an accident

involving a CMV; or

(e) A felony involving the use of a

CMV, including the use of a CMV in the

commission of a felony involving

manufacturing, distributing, or

dispensing a controlled substance.

7. The motor carrier has a written

Safety Control Plan for this Project. This

plan must, in some form, clearly detail

the measures which the motor carrier

will undertake to ensure the current

level of safety is not compromised by

the operation of the Project exemptions.

This document may entail no more than

submitting pertinent portions of a

company’s current Operating Plan or

similar document. An outline for the

creation of this document is also

available, upon request, from the

FHWA. In its application, the motor

carrier would agree to abide by its

Safety Control Plan. More detailed

information regarding the Safety Control

Plan is provided later in this document.

V. Applying for the Project

In the Notice of Final Determination

published in the Federal Register on

June 10, 1997, motor carriers were

required to submit, in writing, their

requests for admission to the Project

within 180 days of the publication of

the notice. The application deadline

was extended to June 30, 1998 (See the

December 16, 1997 issue of the Federal

Register). The FHWA also made known

that additional information clarifying

the eligibility criteria and application

process would be published at a later

date. This notice is that clarifying

document. To ensure a continuous

opportunity for interested motor carriers

to apply for the Project under the new

criteria, the FHWA is further extending

the application deadline until January

30, 1999.

There will be no change in the

application process during this notice

and comment period. Interested motor

carriers should submit, in writing, to the

FHWA, the following:

(1) A completed Motor Carrier

Identification Report (Form MCS–150),

which would provide updated

information about the overall operation

of the motor carrier;

(2) The following certification, duly

executed by the Chief Operating Officer

of the motor carrier:

I certify that (Name of motor carrier)

operates CMVs having a GVWR between

10,001 pounds and 26,000 pounds in

interstate commerce, on a year-round

basis, and is not rated ‘‘Unsatisfactory’’

by the FHWA. I certify the company has

approved the attached Safety Control

Plan and will employ these controls

throughout the Project. I certify that the

motor carrier EITHER: (1) has an

accident rate equal to or less than 0.5

accidents per million vehicle miles

traveled (VMT), averaged over the most

recent 36 months, based upon llll

accidents and llll VMT, by CMVs

having a GVWR between 10,001 pounds

and 26,000 pounds, OR (2) has llll

actual VMT (less than one million) over

the most recent 36 months and has

experienced llll (less than 2)

accidents involving the subject vehicles

over that period of time.

I hereby submit a roster of lll

company drivers for participation in the

Project. The roster includes driver

names, license numbers, State of

licensure, and dates of employment. I

certify that (1) each driver is eligible to

participate in the Project, (2) each

operates CMVs having a GVWR between

10,001 pounds and 26,000 pounds, and

(3) I have independently verified that

the driving record of each does not

include any convictions within the past

3 years of any of the disqualifying

offenses enumerated in the Project

criteria. I have read and agree to be

bound by the requirements for

notification and submission of

information to the FHWA outlined in

the section entitled ‘‘The Agreement’’ in

the Notice of Final Determination of this

Project.

Signature: llllllllllllllll

Name: lllllllllllllllll

Title: llllllllllllllllll

Name of Motor Carrier: llllllllll

(3) A Safety Control Plan;

(4) A driver roster containing drivers’

names, driver license numbers, State of

licensure, and dates of employment.

This would enable the FHWA to advise

enforcement officers of the identity of

Project drivers and to monitor their

driving performance.

Note: The motor carrier applicant would be

required to submit the names of ALL drivers

eligible for participation in the Project.

The FHWA is aware that some motor

carriers with large operations may wish

to volunteer a particular terminal,

geographic region, or State operation for

this Project. The FHWA anticipates no

difficulty in affording motor carriers

flexibility with this form of selection.
37618 Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices

The FHWA would carefully scrutinize

any suggested ‘‘subunits’’ to be certain

they advance the congressional

mandate, particularly the requirement

that this Project examine a broad crosssection of the motor carrier industry. All

of the above items should be assembled

and submitted to: United States

Department of Transportation, Federal

Highway Administration, 10–26 Safety

Demonstration Project, HMT–1, 400

Seventh Street, SW., Washington, D.C.

20590–0001.

VI. Safety Control Plans

Motor carriers interested in applying

for the Project must submit a Safety

Control Plan (SCP). Through outreach

sessions with the industry, the FHWA

has discovered there is some confusion

regarding the content of such a plan. For

the purposes of this Project, the SCP

should provide the answers to the

following:

During the Project, how will the

motor carrier applicant ensure:

(1) Project drivers are qualified to

operate commercial motor vehicles,

(2) Project vehicles are in safe

operating condition,

(3) Project drivers are complying with

the maximum hours-of-service

requirements, and

(4) It will receive a timely warning if

Project drivers are violating the FMCSRs

or the Agreement of Participation.

The FHWA believes the preparation

of the SCP should be straightforward for

most motor carriers which have the

exemplary safety record required to

qualify for the Project. Experience has

shown that the vast majority of motor

carriers who have exemplary safety

records also have a well-defined set of

safety controls. For this Project, the

FHWA proposes that an existing set of

company operating instructions,

whether currently included in a manual

or are a set of policy documents, could

be used to satisfy the SCP requirement,

if the motor carrier applicant directed

the FHWA to the sections which satisfy

the SCP requirements.

Where an initial SCP must be created,

the FHWA believes that an explanation

of the day-to-day safety practices and

controls which the motor carrier

employs, or will employ, should suffice.

Upon review of the motor carrier’s SCP,

the FHWA must be able to identify what

safety controls are in place, and be able

to evaluate them in terms of the level of

safety they could be expected to

produce. A model outline of an SCP is

available from the FHWA upon request.

VII. Eligible Drivers

Drivers operating CMVs with a GVWR

between 10,001 pounds and 26,000

pounds are eligible for the Project. The

FHWA will, however, permit a Project

motor carrier to direct Project drivers to

operate vehicles outside of the Project

weight class if: (1) the driver operates

Project vehicles at least 25 percent of

the time, and (2) the motor carrier can

provide the FHWA with a reasonable

calculation of the total number of VMT

accrued outside the Project, and the

total number of VMT accrued within the

Project, for each such driver. The FHWA

can take such information into account

when conducting its evaluation of the

Project, and thus preserve the integrity

of that evaluation. Motor carriers and

their drivers are advised to be alert to

the fact that when activity is conducted

outside the Project, that activity is

subject to all provisions of the FMCSRs.

For instance, a driver who operates a

CMV with a GVWR in excess of 26,000

pounds must, in accordance with 49

CFR 395.8, account for his or her hoursof-service for the previous 8 consecutive

days even though the driver, during the

earlier period, was exempt from the

requirements of 395.8 by virtue of being

engaged in Project activity.

VIII. The Agreement of Participation

If the FHWA finds that a motor carrier

applicant is qualified for admission to

the Project, it will, by letter, admit the

motor carrier to the Project.

Participation in the Project may

commence immediately upon receipt of

the admission letter. A copy of this

letter should be made available to each

Project driver to serve as the credential

authorizing his/her participation in the

Project.

By agreement, Project motor carriers

promise to report certain information to

the FHWA. The reporting requirements

have remained relatively the same as in

the June 10, 1997 notice. The changes in

the reporting criteria primarily relate to

accident reporting and notification of

changes to the Safety Control Plan. To

assist motor carriers in better

understanding these reporting criteria,

the following additional guidance is

being provided:

(1) Within 10 business days following

the occurrence of a fatal accident, and

within 30 business days following the

occurrence of a non-fatal accident,

involving a Project driver, the motor

carrier would be required to submit

details of that accident to the FHWA.

The information would have to be

sufficient enough to enable the FHWA

to locate the corresponding police

accident report. The actual police

accident report will not be required to

be submitted. Normally, it would be

sufficient to provide the date and

physical location of the accident, the

vehicle number, and the driver’s name

and license number. If the FHWA needs

nonconfidential insurance-related

information, it would so advise the

motor carrier.

Note: This information would have to be

accompanied by a revised calculation of

accidents per million VMT, indicating the

figures used to make the calculation.

The motor carrier would be subject to

removal from the Project (see below)

should this accident rate exceed 0.5

accidents per million VMT for the most

recent 36 month period. Project motor

carriers with less than one million VMT

in the most recent 36 months and

having two or more accidents occur

during the most recent 36 months

would also be subject to removal.

(2) Immediately following the

addition of a new driver eligible for the

Project, the motor carrier would be

required to submit an update to the

roster of Project drivers, including the

name, driver’s license number, and date

of employment of each driver added. A

new and complete driver roster would

not be required each time the motor

carrier intends to use a new driver in

the Project. This could be accomplished

via facsimile (FAX) , the U.S. Mail, or

E-Mail and will be explained in detail

in the agreement letter. Without a

complete and accurate roster of the

drivers participating in the Project, the

FHWA would be unable to offer realtime assistance to enforcement

personnel at roadside inspection

locations.

(3) Removal of Project drivers would

call for a procedure similar to that

described in (2) above.

(4) Within 10 business days, the

motor carrier would be required to

notify the FHWA when the motor

carrier is sold, goes out of business,

changes its name, ceases to operate,

ceases to operate in interstate

commerce, ceases to operate CMVs with

GVWRs between 10,001 pounds and

26,000 pounds, or ceases to conduct

operations on a year-round basis.

(5) Within 30 business days, the

motor carrier would be required to

notify the FHWA when the motor

carrier chooses to amend its Safety

Control Plan, or is unable, for any

reason, to carry out the terms of the

Safety Control Plan which it developed

for this Project. A resubmission of the

entire Safety Control Plan would not be

necessary. Participating motor carriers

would submit, in writing, an addendum

to the plan which describes the changes

made.

(6) Semi-annually, Project motor

carriers would be required to provide

the FHWA with a current calculation of
Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices 37619

accidents per million VMT for the

preceding 36 months and indicate the

figures used to arrive at the calculation.

The first calculation would be

submitted upon the sixth-month

anniversary of the date of admission to

the Project. Subsequent calculations

would be due every six months

thereafter.

IX. Removal From the Project

The FHWA does not anticipate that

any motor carrier which has satisfied

the stringent admission criteria of this

Project will experience any

deterioration of its safety record.

However, should this occur, the FHWA

would, consistent with its duty under

the NHS Act, take all steps necessary to

protect the public interest, as well as the

integrity of the Project. Participation in

this Project is voluntary, and the FHWA

would retain the right to revoke a motor

carrier’s privilege to participate in the

Project if its safety performance poses a

threat to highway safety. Participating

motor carriers would not be exempt

from roadside inspections, compliance

reviews or enforcement actions

pertaining to the remaining regulations

from which they are not exempt, or on

those portions of their operations which

would not be a part of the Project. Also,

Project drivers who pose a threat to

highway safety would, at a minimum,

be subject to immediate revocation of

their privilege to participate in the

Project.

Should the FHWA find the highway

operations of a Project motor carrier

have placed the safety of the public in

jeopardy, the agency would remove the

motor carrier from the Project. Should

the three-year accident rate of a Project

motor carrier exceed 0.5 per million

VMT for the most recent 36 month

period, the motor carrier would be

subject to disqualification. Additionally,

Project motor carriers that incur two or

more accidents while accruing less than

one million VMT in the most recent 36

months would also be subject to

disqualification.

The FHWA would also immediately

remove any Project driver convicted of

any of the offenses enumerated under

item 6 of the Criteria for Admission to

the Project. Such driver convictions

would not necessarily result in the

Project motor carrier’s removal. It could,

however, result in more intensive

scrutiny of the Project motor carrier’s

operation.

X. The Final Evaluation

At the conclusion of the Project, the

FHWA would conduct an evaluation of

the Project. The principal objective of

the evaluation would be to provide

input to the FHWA’s ongoing zero-base

regulatory review. Simply put, we

would determine whether a group of

exemplary motor carriers can operate a

specific class of CMVs as safely without

a lot of regulation as it could when

subject to the entire body of the

FMCSRs.

The evaluation will focus upon

operational safety by comparing the

collective experience of Project motor

carriers and drivers during the Project

with that prior to the Project. The

evaluation will also compare the

collective experience of Project motor

carriers with the experience of motor

carriers not participating in the Project.

These comparisons will be

accomplished through the use of motor

carrier performance data obtained from

Federal and State information systems,

as well as Project data reported to the

FHWA by the participating motor

carriers.

The FHWA is cognizant of the

economic realities which underlie the

suggestion that it should assure motor

carriers that the exemptions that would

be allowed during this Project would

continue beyond the three-year life of

this pilot. It is possible that the

exemptions would continue in some

form. The case for permanent regulatory

change, however, must be made by

using valid supporting data. The agency

recognizes that strong participation in

this Project could generate data which

may support meaningful, performancebased improvements of the current

regulatory scheme. The FHWA cannot

predict what the Project data will show,

or what regulatory changes, if any,

would be supported. After the first two

years of the Project, the FHWA would

analyze the Project data. Depending

upon the data and its analyses,

indications of possible regulatory

changes could result.

XI. Preemption

In response to docket comments

expressing concern about the possible

enforcement of intrastate regulations

that would not be compatible with the

requirements of this Project, a

supplemental notice was published on

October 29, 1996 (61 FR 55835) seeking

comment on the appropriate use of

Federal preemption in this Project. Eight

comments to the supplemental notice

were received. Five were from trade

groups, one from a motor carrier, one

from a union, and one from a safety

advocacy group. Four were in favor of

the exercise of Federal preemption, two

were opposed to it, and two offered no

opinion. No comments were received

from the States.

The FHWA will not pursue

preemption with regard to this Project.

For some time, however, through

various Federal initiatives, foremost of

which is the program of grants to States

known as the Motor Carrier Safety

Assistance Program (MCSAP), the States

and the Federal government have been

working together to achieve a high

degree of uniformity between State and

Federal motor carrier regulation and

their enforcement. At the same time, the

Federal-State partnership has resulted

in a better understanding of regulatory

and enforcement problems. Thus, a new

Federal program, though it may

necessitate corresponding changes in

State enforcement activity, is more

readily understood by State officials.

The FHWA believes that the FederalState partnership is capable of absorbing

the changes which this Project requires.

Currently, 26 States and Territories

automatically adopt revisions to the

FMCSRs. It is reasonable to believe

those States and Territories would

accept the pilot Project and its attendant

exemptions while permitting

examination of the effect of

performance-based standards on

highway safety. The FHWA will renew

it’s dialogue with the various States to

reaffirm their understanding of the

Project and ensure proper coordination

and communication is accomplished.

XII. Paperwork Reduction Act of 1995

The FHWA is aware that this Project

would impose special recordkeeping

and reporting requirements upon

participating motor carriers. The FHWA

believes the paperwork requirements

proposed in this document are

absolutely necessary to conduct this

Project and to ensure the safety of the

public on the highways. For instance, in

the absence of a roster of drivers

participating in the Project, the FHWA

would be unable to assist roadside

enforcement officials in the conduct of

their duties. The FHWA also believes

that most of the remaining records

which would be required by this Project

are routinely maintained by most motor

carriers in the course of their day-to-day

operations.

The voluntary participants in this

program would be required to comply

with information collection

requirements which are subject to

review by the OMB under the PRA.

Persons are not required to respond to

a collection of information unless it

displays a valid OMB control number.

The information collection requirements

related to this Project have been

approved by the OMB until November

30, 2000, and assigned OMB Control No.

2125–0575.
37620 Federal Register / Vol. 63, No. 133 / Monday, July 13, 1998 / Notices

Generally, Federal Register

concerning each collection of

information. Comments on the

information collections proposed in this

notice will be considered by the FHWA

in its request for long-term approval.

With respect to the collections of

information described below, the FHWA

invites comments on: (1) Whether the

proposed information collections are

necessary for the proper performance of

the functions of the agency, including

whether the information will have

practical utility; (2) the accuracy of the

FHWA’s estimate of the burden of the

proposed information collections,

including the validity of the

methodology and assumptions used; (3)

ways to enhance the quality, utility, and

clarity of the information to be

collected; (4) ways to minimize the

burden of these information collections

upon those who are to respond,

including the use of automated

collection techniques, and other forms

of information collections technology.

The title used to identify the

information collections proposed in this

notice and submitted for OMB’s

approval is ‘‘Motor Carrier Regulatory

Relief and Safety Demonstration

Project.’’

This Federal Register notice proposes

a voluntary pilot Project. In return for

receiving exemptions from certain

requirements of the FMCSRs, each

Project motor carrier would be required

to develop and/or furnish certain

information about its operations. It is

anticipated that the initial application

will require about one-half hour to

complete. This document is necessary to

identify those motor carriers that believe

they are eligible to participate in the

Project, and to indicate their desire to

participate in the Project. The Safety

Control Plan, outlining the safety

management measures the motor carrier

would have in place to ensure that it

would achieve the appropriate level of

operational safety during the Project,

would require approximately one and

one-half hours to prepare. This

document would be subject to

examination by the FHWA, and would

be used to assist the FHWA in ensuring

that Project participants did not neglect

those aspects of motor carrier safety

which are normally addressed by the

regulations from which they are

temporarily exempt. The Safety Control

Plan would require approximately one

and one-half hours to prepare. Further,

participating motor carriers would be

required to submit to the FHWA the

name, driver’s license number, and date

of employment of each participating

driver. The motor carrier would also be

required to advise the FHWA

immediately of any changes in this

information. These collections and

submissions of information are

necessary in order to effectively grant

Project exemption to identifiable

operators of CMVs and to permit the

performance of each to be monitored

and evaluated. It is estimated that the

reporting and recordkeeping burden for

these items would be one hour.

It is also proposed that each accident

involving Project drivers and/or Project

vehicles would be reported to the

FHWA as it occurs (within 10 or 30

business days, depending upon

severity). Each Project motor carrier

would also calculate and submit its

accident rate per million VMT on a

semi-annual basis, and advise the

FHWA if that rate exceeds 0.5. This

information is necessary in order to

identify those motor carriers whose

safety performance is declining during

the Project and would also be used to

assist in comparing the performance of

the exempt motor carriers with the

performance of those which remain

subject to the FMCSRs. The annual

reporting and recordkeeping burden for

this information collection is estimated

to be one-half hour.

The most likely respondents to this

information collection will be motor

carriers operating CMVs with a GVWR

between 10,001 pounds and 26,000

pounds, operated in interstate

commerce, have a satisfactory safety

rating or is not rated, and have an

accident rate less than 0.5 per million

VMT. The approximate number of

motor carriers currently eligible to

participate in the Project is 33,000.

Therefore, it is estimated that the total

annual reporting and recordkeeping

burden will be 275 hours.

XIII. Conclusion

The FHWA welcomes comment on

any and all aspects of these proposed

changes to the Project from all

interested parties. Upon review of

public comment, the FHWA intends to

modify the project, authorize qualified

motor carrier participation, and publish

a supplemental notice of final

determination.

(49 U.S.C. 31136 and 31141; 49 CFR

1.48)

Issued on: July 7, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98–18539 Filed 7–10–98; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

[Docket No. NHTSA–98–3983]

Mercedes-Benz of North America, Inc.,

Receipt of Application for Decision of

Inconsequential Noncompliance

Mercedes-Benz of North America, Inc.

(Mercedes-Benz) of Montvale, New

Jersey has determined that some 1998

Mercedes-Benz M-class vehicles fail to

comply with 49 CFR 571.120, Federal

Motor Vehicle Safety Standard (FMVSS)

No. 120, ‘‘Tire selection and rims for

vehicles other than passenger cars,’’ and

has filed an appropriate report pursuant

to 49 CFR Part 573, ‘‘Defect and

noncompliance reports.’’ MercedesBenz has also applied to be exempted

from the notification and remedy

requirements of 49 U.S.C. Chapter 301—

‘‘Motor Vehicle Safety’’ on the basis that

the noncompliance is inconsequential to

motor vehicle safety.

This notice of receipt of an

application is published under 49

U.S.C. 30118 and 30120 and does not

represent any agency decision or other

exercise of judgment concerning the

merits of the application.

The purpose of FMVSS No. 120 is to

provide safe operation of vehicles by

ensuring that those vehicles are

equipped with tires of appropriate size

and load rating; and rims of appropriate

size and type designation. Paragraph

S5.3, Label information, of FMVSS No.

120 states that each vehicle shall show

the appropriate tire information (such

as: recommended cold inflation

pressure) and rim information (such as:

size and type designations) in the

English language. This information must

appear either on the certification label

or a tire information label, lettered in

block capitals and numerals not less

than 2.4 millimeters high, and in the

prescribed format. In addition, FMVSS

No.120 requires that the label be affixed

to the hinge pillar, the door-latch post,

the door edge that meets the latch post,

or next to the driver’s seating position.

If these locations are impractical, the

label shall be affixed to the inwardfacing surface of the door next to the

driver’s seating position. However, if all

of the preceding locations are not

practical, the manufacturer can notified,

in writing, NHTSA and request approval

for an alternate location in the same

general location.

Mercedes-Benz states that 35,357

vehicles were produced from the

beginning of production in January 1997

through April 13, 1998 that do not meet

the labeling requirements stated in the